Searching Employee Email and Digital Communications

By now nearly everyone realizes that digital communication, whether via email, instant message, pager, Twitter, Facebook, or whatever medium the future brings, is here to stay.You would be hard pressed to find a business in today’s society that does not use email, and social networking is an integral part of many people’s personal and work lives.

Because electronic communication has become such a presence in the workplace, employers and employees often struggle to ascertain what is a private communication and what is not.This question becomes even more confusing when one realizes that employees often send highly personal communications through employer owned computers and other electronic devices.

The United States Supreme Court has recently addressed the issue of privacy rights in employee’s personal communications on employer-provided digital devices.The case is City of Ontario v. Quon, and it was the first U.S. Supreme Court case to specifically address this issue.In the Quon case, a SWAT team sergeant named Jeffrey Quon had sued his employer, the City of Ontario police department, for invasion of privacy.The police department provided SWAT members with work email, as well as text-messaging pagers to facilitate the SWAT team’s rapid responses.The department had written employment policies stating that it had the right to monitor email and Internet activity, as well as similar policies regarding text message activity.Quon regularly exceeded his monthly character limit of 25,000 characters, and reimbursed the department for his overage.

Eventually Quon’s commanding officer “got tired of being a bill collector” and asked to review Quon’s text message history to “ensure that Quon was not being required to pay for work-related expenses.”A review of the messages revealed that Quon had sent many sexually explicit messages while on duty, and that the majority of the messages sent while on duty were in fact personal rather than work-related.Quon sued for invasion of privacy, and won at the trial court level.The case eventually made its way to the United States Supreme Court.

The Supreme Court refused to set down a definitive test for when an employee’s privacy in electronic communications has been violated.However, the Court did find that the search of Quon’s text messages was lawful because: (1) it was justified as necessary for a non-investigatory work related purpose; (2) the scope of the search was reasonable because it was an “efficient and expedient” way to determine whether the character limit was sufficient; (3) under all the circumstances Quon “had a limited expectation of privacy” in his text messages sent on a SWAT team pager.

While there is currently no bright line rule for when or how an employer can review or audit employee electronic communications, the Quon case indicates that if an employer has a legitimate work-related reason for the review, and the means taken are efficient, expedient, and not excessively intrusive, such a search will generally be lawful.Regardless, the facts of every situation can be quite different, and employers must always be cognizant of their employees’ right of privacy.Thus, an employer is well advised to seek legal counsel before searching any employee communications that may contain private information.Adoption of well written employment policies regarding electronic communication is also a must, as is consistent and fair enforcement of these policies.